Top judge corrects media
International court did not decide that claim of genocide in Gaza was plausible
A former president of the International Court of Justice has taken the unusual step of correcting widespread misreporting of her court’s ruling on Gaza earlier this year.
Joan Donoghue, whose term of office expired a few days after the court delivered its findings 26 January, gave an interview to the BBC’s HARDtalk programme which was broadcast yesterday.
She was asked this question by the interviewer, Stephen Sackur (at 4.27):
Would it be fair to say that the key point — that you made your initial order and ruling upon — was whether or not there was a plausible case that should be taken on by the court of genocide in the case of Israel's actions in Gaza after October 7 — and you quite clearly decided that there was a plausible case? Is it right to say that’s at the heart of what you decided?
Donoghue replied (at 4.54)
I’m glad to have a chance to address that because the court’s test for deciding whether to impose measures uses the idea of plausibility — but the test is the plausibility of the rights that are asserted by the applicant, in this case South Africa. So the court decided that the Palestinians had a plausible right to be protected from genocide and that South Africa had the right to present that claim in the court.
It then looked at the facts as well. But it did not decide — and this is something where I’m correcting what’s often said in the media — it didn’t decide that the claim of genocide was plausible.
It did emphasise in the order that there was a risk of irreparable harm to the Palestinian right to be protected from genocide. But the shorthand that often appears — which is that there’s a plausible case of genocide —isn’t what the court decided.
I tried to make this clear myself in a piece I published here on 4 April:
The lawyers’ letter was signed by Lady Hale, former president of the UK Supreme Court. In its third paragraph, it said that the International Court of Justice (ICJ) “concluded that there was a plausible risk of genocide in Gaza”.
There were several further references to “the ICJ’s finding of plausible risk” in the lawyers’ letter. But the words “plausible risk” appear nowhere in the court’s order.
As I argued, they are a misrepresentation of what the court concluded in paragraph 54 of its judgment:
In the court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.
On Wednesday, the Commons business and trade committee took oral evidence on UK arms exports to Israel. A full transcript is available.
Lord Sumption, a former justice of the UK Supreme Court and one of the 600 lawyers who signed the letter alongside Hale, stuck to his original interpretation of the court’s order — and particularly the sentence I quoted from paragraph 54.
I think it is being suggested… that all that the ICJ was doing was accepting, as a matter of abstract law, that the inhabitants of Gaza had a right not to be subjected to genocide. I have to say that I regard that proposition as barely arguable. It seems to me absolutely clear that it was a conclusion based on a combination of the well-established interpretation of the genocide convention and the facts as they provisionally appeared to be.
A response to the letter signed by Sumption and Hale came shortly afterwards in a letter from the campaign group UK Lawyers for Israel; it has now been signed by some 1,370 lawyers. Sumption was asked by the committee chair why he had a different interpretation of “plausible risk” from the argument rehearsed in the second letter.
He replied:
I think the difference is whether that phrase is referring to the facts of the current conflict in Gaza or to the abstract question whether people in Gaza have the right to be protected. That is the essence of the difference and I have explained why it seems to me to be perfectly clear.
But it didn’t seem perfectly clear to Liam Byrne MP, the committee chair, who asked Sumption once again why he believed his interpretation was the correct one.
He replied:
Because the critical finding of the ICJ in the 26 January judgment is expressly stated to be based on the facts and circumstances mentioned in the paragraphs preceding paragraph 54. Those facts and circumstances are, one, the status of the Gazans as entitled to protection, two, the scale of the conflict and the loss of civilian lives and property and, three, the arguably genocidal intent disclosed by a number of published statements by prominent Israeli government personnel.
It was left to Natasha Hausdorff, a barrister and international law specialist who is also legal director of the UK Lawyers for Israel charitable trust, to explain what the court’s ruling actually meant:
Plausibility, at the provisional measures stage of the International Court of Justice, is a procedural matter; it is not about the alleged wrong being committed. The establishment of a prima facie case for the indication of provisional measures rests therefore on a finding that the rights claimed plausibly exist, not that there has been a violation of them. The case law clearly indicates — as does, I suggest, the wording adopted by the court itself — that this is about whether those rights are subject to a legal determination: do they fall under the genocide convention?
It is very important to understand why the allegations of genocide are being advanced. It is not because there is any currency to the allegations, any real evidence to base them on. They have been advanced by South Africa as a legal hook because Israel is a party to the genocide convention, as is the UK…
I respectfully insist that reading a finding of plausible risk that Israel is committing genocide disregards the court’s unambiguous statements, in particular at paragraph 30, where it says that it “is not required to ascertain whether any violations of Israel’s obligations under the genocide convention have occurred”.
The court’s task is “to establish whether the acts and omissions complained of by the applicant appear to be capable of falling within the provisions of the genocide convention”. In the court’s view, some of the rights claimed by South Africa were. That is as far as the court went. None of the acts alleged was found to be plausible, likely, arguable or at risk of happening.
A day later, Hausdorff’s explanation of the court’s ruling was effectively endorsed by the judge who delivered it.
Oh Dear
I meant "You only need to follow her analysis to see that it is not a rational response to assert that it is almost unarguable"
Too much haste!
Full Marks to Natasha Hausdorff. Your only need to follow her analysis to see that the suggestion that it is not a rational response to assert that it is almost unarguable. But how timely to have he analysis confirmed by the Head of the ICJ herself.